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Trump's 'Actual malice' 

While his words away from cameras in the Oval Office the following morning will have a more immediate impact on the futures of DACA recipients and America's reputation around the globe, President Trump's statement on libel law in the United States last week represents a more thorough assault on the country's fundamental values through its disrespect for the rule of law and lack of understanding of the nation's history. Trump's critique of libel law — driven by his frustrations about Michael Wolff's book that savaged the president and the chaos inside the White House — was immediately overwhelmed by the "shithole/shithouse" shit show that developed at the end of last week, but it's important for Trump's most important disparagement of a free press to date to not get lost.

At a portion of a Cabinet meeting open to the media, Trump put forward a lengthy statement regarding current libel laws that he described as "a sham and a disgrace." In one respect, the comments were not new news. As a presidential candidate, Trump made similar remarks about the need to "open up" libel laws. However, those off-handed words were said in a high-octane political rally setting by a long-shot candidate; Wednesday's prepared remarks were said in the sober setting of the White House by an elected president.

Through its series of decisions on the topic going back to the 1964 New York Times v. Sullivan decision, the Supreme Court very carefully balanced the First Amendment's interest in the free exchange of ideas with the very real need to protect the reputations of those who have been defamed. If a public official can make the case that a media outlet knows a statement is false and publishes it anyway, or does so with "reckless disregard" whether it is true, an official can still make a civil claim. That standard — "actual malice" — is a high bar, but certainly not an absolute one; it won the day over liberal justices on the Supreme Court who advocated for a total ban on such suits by public officials acting in their official capacity. Moreover, while public officials and public figures have to prove actual malice, plaintiffs who lack position or fame have only to prove "negligence" on the part of those who had disseminated the falsehood. Finally, while punitive awards are not available except in cases where actual malice is proved, the court has determined that awards in defamation cases must be limited to actual damages.

Thus, Trump's statements show an obliviousness to the fact that the media remains very much subject to being taken to task for libelous writings — even against folks like him — but that the rule of law in this area was carefully constructed and has been cemented through precedent. Moreover, Trump showed a clear ignorance of the history that guided the Supreme Court toward these careful compromises on libel, particularly the thoroughly scorned efforts by the John Adams administration early in the nation's history to criminalize false statements about the federal government in the Sedition Act of 1798. As Justice William J. Brennan wrote in his Sullivan decision: "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." In the development of libel standards, the court showed an understanding of the lessons of history in a way that is inaccessible to the current president.

Trump said last Wednesday that his administration will "take a strong look" at revising libel law. However, as libel is an issue governed by the laws of the 50 states, there is no federal libel law to be reformed. True change on the issue could only come through an explicit carve out in the First Amendment through amendment (fairly unfathomable) or through a revision to the Supreme Court's interpretation of the free press provision of the First Amendment. While the latter is also unlikely, the suggestion that the Trump Administration might actually employ a prospective jurist's stance on libel as a new "litmus test" in the appointment process is truly alarming.

Arizona Republican Sen. Jeff Flake has written a reflection on the first year of the Trump administration to be delivered later in the week. In it, Flake says, "It was the year in which an unrelenting daily assault on the constitutionally protected free press was launched by that same White House, an assault that is as unprecedented as it is unwarranted." Last week's comments on libel suggest the years ahead will be decidedly tougher ones for the Constitution.

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